The court affirmed that the plaintiff sufficiently proved the valid execution of the Will, while the defendant failed to establish claims of forgery or suspicious circumstances surrounding it.

JUDGMENT :

Manish Pitale, J.

This testamentary suit arises out of testamentary petition filed for grant of probate of Will dated 06th July, 2000, allegedly executed by the deceased i.e. Ranchhodlal Manilal Chokshi. He died on 25th January, 2008 and the probate petition was filed in the year 2015.

2. The aforesaid Will appointed Rikin Ranchhodlal Chokshi (plaintiff / petitioner) as a sole executor, while the beneficiaries were the plaintiff i.e. the son of the deceased, his widow Urmila, as also the two daughters Nita Zaveri and Shaila Shah. While the widow Urmila and one of the daughters i.e. Nita Zaveri gave consent affidavits, supporting the prayer made in the probate petition, the remaining daughter i.e. Shaila Shah filed caveat and opposed the grant of probate. As a result, the proceeding was converted from a testamentary petition to the present Testamentary Suit No. 180 of 2016. On 04th April, 2017, this Court framed five issues for determination in the suit and the rival parties led oral as well as documentary evidence in the matter. The suit came up for final hearing, wherein the learned counsel for the parties were heard at length. Written submissions along with copies of judgments relied upon by the learned counsel were also placed on record. This Court has considered the aforesaid material.

3. The plaintiff examined two witnesses i.e. the widow of the deceased Urmila (PW-1) and the plaintiff himself (PW-2). Both the attesting witnesses to the subject Will expired before filing of the testamentary petition and an affidavit of PW-1 Urmila was placed on record as per Rule 384 of the Bombay High Court (Original Side) Rules, 1980 (hereinafter referred to as the aforesaid Rules), wherein she stated that the deceased had executed and signed the subject Will in the presence of the attesting witnesses, who also signed the subject Will and further that this was done in her presence at the residence of the deceased. The defendant did not examine any witness. The witnesses of the plaintiff were cross-examined on behalf of the defendant (caveator). It is on the basis of such material that the learned counsel for the rival parties have addressed this Court in support of their respective stands.

4. In order to appreciate the rival submissions, it would be appropriate to refer to the issues framed in the present suit. The said issues are as follows:

"1. Whether the plaintiff proves that the last Will and Testament dated 6th July 2000 of the deceased- Ranchhodlal Manila Chokshi is validly executed and in accordance with law?

2. Whether the defendant proves that the last Will and Testament dated 6th July 2000 of the deceased is forged document?

3. Whether the defendant proves that the last Will and Testament dated 6th July 2000 of the deceased is void for uncertainty?

4. Whether the defendant proves that the last Will and Testament dated 6th July 2000 of the deceased was executed under suspicious circumstances?

5. What decree? What order?"

5. A perusal of the aforesaid issues framed for consideration in the present suit would show that while the burden to prove the first issue is on the plaintiff, the burden to prove issue Nos.2 to 4, is on the defendant.

6. Mr. Rohan Cama, learned counsel appearing for the plaintiff submitted as follows:

a) The signature of the deceased on the subject Will dated 06th July, 2000 and its proper execution was duly proved by the witnesses of the plaintiff. PW-1 Urmila specifically stated in her affidavit and also during her cross-examination as to the manner in which the deceased executed the subject Will. She not only proved the signature but also the contents of the Will. Sufficient documents were placed on record to show that the signature on the Will was indeed that of the deceased. In this situation, non-availability of the attesting witnesses of the Will cannot lead to any adverse inference against the plaintiff.

b) The deceased used to have a short signature and a long signature. On the subject Will the deceas